The Incapacity Crisis and the lack of Registrations of Lasting Powers of Attorney
An ‘Incapacity Crisis’ alert has recently been sounded by the organisation ‘Solicitors for the Elderly’ (SFE) after they published the findings of a study commissioned to research the gap between the volume of people suffering with mental incapacity and the number of people who have created a Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA), is a legal document which can be made by anyone over the age of 18, who has the mental capacity to do so. It appoints another person, or persons, to make key decisions about your affairs. There are two types of LPA; one for decisions about your finances and property – to include everything that you own, and one for decisions about your health and welfare – to include everything else, such as your living arrangements, your medication, any operations etc.
We commonly refer to LPAs as alike to an insurance policy- if you need it, it’s there to help, but if you don’t, that’s even better!
Once a person loses mental capacity, their ability to make key decisions about their health and welfare or financial matters may also be lost, and should they not have created an LPA, they further lose control over who makes their decisions for them.
The SFE report shows that the number of people diagnosed with dementia in the UK increased by over 50% in the years between 2005/6 and 2016/17. This figure now stands at 540,000. In addition, medical professionals believe that the volume of unconfirmed cases would see this figure rise closer to 850,000 if all those suffering symptoms were diagnosed. Unfortunately, a predicted 42,000 of those currently diagnosed are under 65.
Scarily, in 2016, dementia was the most frequent cause of death in women, and the second in men.
Volumes of Dementia sufferers are set to rise
The number of those suffering with dementia is predicted to rise steeply in the next decade, to a predicted one million diagnosed cases by 2025, plus another 300,000 undiagnosed cases. This is predicted to double to two million diagnosed cases by 2050.
However the crisis goes beyond this: the study found that only 928,000 health and welfare (H&W) LPAs have, to date, been registered with the Office of the Public Guardian (OPG) in England and Wales since they began in 2007. This volume suggests that there are nearly 12 million people at significant risk of dementia who are yet to make suitable arrangements for their decision making in terms of care, health and welfare in their senility. This includes the decision as to whether they move into a care home, or remain at home.
As the years pass towards 2025 and potentially 1 million dementia sufferers, this gap, if trends continue, will widen further to be over 13.2 million people at risk. The law states that once a person has lost mental capacity, they will not be able to appoint an LPA and if friends or family want to be able to make decisions on the person’s behalf, they will have to apply to the court for a deputyship order – both lengthy and expensive.
The benefits of making a Lasting Power of Attorney include:
- If you are unable make decisions for yourself in the future, you have predetermined the decision maker or makers who you are able to furnish with your wishes.
- Only the person or people who you know and trust that you have named as your attorney(s) are able to make decisions on your behalf.
- Making an LPA now will make things easier for your friends and family in the future. Gaining authority to act upon your behalf when you are not able to freely give it, will be much more time consuming, costly and emotionally draining at a difficult time.
- Deciding to create an LPA can be a good starting point to open discussions with your family about your preferences for the future.
It is hoped that the report by the SFE will heighten awareness of the disparity between the number of people who have LPAs in place and the number likely to need one in the future; largely through to a lack of awareness of the need for such a document to be in place.
Although there has been a significant increase in the number of financial LPAs submitted to the OPG, there is still a taboo around medical decisions and end of life care, which really needs to be dismissed. It is hoped that on the back of this study, health and welfare LPAs become as much of a dinner table discussion as financial LPAs with volumes of uptake increasing in line with the financial documentation.
Why should I act now and create a Health & Welfare Lasting Power of Attorney?
Although conversations about end of life choices are important, even with written consent or email trails, nothing provides tighter control than a legal document stating exactly who has the right to make decisions on your behalf should you no longer be able to make the decisions yourself. In fact, only a Lasting Power of Attorney confers authority for your family to act; unfortunately, written consent is no longer enough.
If you have been reading this article, or have been forwarded it from a friend or family member, perhaps now is the time to act. Life is busy and the to do list fills quickly. We urge you not to drop this to the bottom of your list. If you are ready to consider organising your LPA for Health & Welfare, or finances - or both, in the first instance please contact our Planning, Protection and Probate team on firstname.lastname@example.org or by calling 0116 212 1000. Alternatively, leave us a message here.